When is it Right to Fight? War, Peace and Mass Atrocity Crimes

Address by Professor the Hon Gareth Evans AC QC, Chancellor of The Australian National University, Former Australian Foreign Minister and President Emeritus of the International Crisis Group, to Adelaide Festival of Ideas, Adelaide, 19 October 2013                     

Was it right or wrong for Barack Obama to threaten military strikes on Syria? If it was right after chemical weapons were used, why not earlier when 100,000 were dying from conventional weapons?  Was it right in Libya for the NATO-led intervention to pursue Gaddafi all the way to the grave, or should they have stopped short of that?  If we should have intervened militarily in Rwanda in 1994, why not in Darfur ten years later? Why might it have been right to invade Iraq in 1991, but not in 2003? How could it be right to take military action in response to mass atrocity crimes in Sierra Leone or Cote d’Ivoire, knowing that no such action would ever be contemplated against Russia or China, however badly Moscow behaved in Chechnya or Beijing in Tibet or Xinjiang?

The common theme running through all these question is when is it right to fight, to apply not just diplomatic pressure, or sanctions or the threat of international criminal prosecution, but coercive, destructive military force. And, moreover, when is it right to fight when what is at stake is not one’s own country’s national survival or national self-defence, where the answers might be easier, but rather the defence of our common humanity – in cases where another state is perpetrating or allowing, within its borders, genocide, ethnic cleansing, other crimes against humanity or major war crimes.

The questions I have posed are all tough ones, not least because we should all know by now – though every generation seems to have to learn the lesson afresh – that military action of any kind, on any scale, whatever the justice of the cause for which it is fought, is never to be embarked on lightly. It is always ugly, always destructive, always the source of immense human pain and misery, and almost always produces unintended results.

But as hard as the questions are, I hope I can show you in this discussion that there is a principled way of answering them, in a way that doesn't get us caught up in contradictions or double-standards.  We are still not getting it quite right internationally: by no means are all the right players making all the right calls at the right time, fighting when we should and not fighting when we shouldn't. But the good news is that, since the UN unanimously embraced the principle of “the responsibility to protect” in 2005, we do have a moral and political frame of reference which is helping to get the world closer to getting these calls right than it has ever been.

  It was not always thus. For centuries, all the way back to the birth of recorded history, mass atrocities had been a matter of indifference to almost everyone but their victims, and the emergence in the 17th century of the modern Westphalian system of recognized sovereign states did nothing much more than institutionalize that indifference in the case of such crimes committed behind state borders.  It is not too much of an exaggeration to say that sovereignty was seen essentially as a license to kill.

The extraordinary thing is how little changed after the horrors of the Holocaust and Second World War. Despite the post-War recognition of “crimes against humanity” in the Nuremberg Tribunal Charter; despite the Genocide Convention; despite the Universal Declaration and International Covenants on Human Rights; despite the new Geneva Conventions on the protection of civilians, we saw horrors being perpetrated throughout the Cold War years, most visibly in Cambodia in the mid-1970s.  And despite the end of the Cold War, giving new hope for consensus on how respond to mass atrocity crimes, the decade of the 1990s saw an almost unending series of reminders that the Holocaust and Cambodia were not unrepeatable aberrations, and that in dealing with these catastrophes the international community simply could not agree about anything.

Even when situations cried out for some kind of response, and there was some reaction through the UN, it was too often erratic, incomplete or counter-productive, as in the debacle after initial hopes of Somalia in 1993, the catastrophe of Rwandan genocide in 1994, and the almost unbelievable default in Srebrenica in Bosnia just a year later, in 1995. And when action was taken in 1999 in Kosovo, it was in breach of international law – taken without Security Council authority because of a threatened Russian veto.

Throughout the decade we had a fundamental conceptual gulf between those, largely in the global North, who rallied to the banner of “humanitarian intervention” or the “the right to intervene”, and those, largely in the global South, who defended the traditional prerogatives of state sovereignty, arguing that internal events, however troubling, were none of the rest of the world’s business. Anything to do with “humanitarian intervention” was a consensus-free zone.
It is understandable that the South should have reacted that way – that newly independent states in particular, proud of their recently won sovereignty, often conscious of their fragility and in many cases remembering the long colonial history of “civilising missions”, should have been deeply reluctant to embrace the idea that anyone had a right to forcibly intervene in their internal affairs. Their rallying cry became Article 2(7) of the UN Charter: “nothing…shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state”. And so, throughout the 1990s, there was both bitter and divisive debate in the General Assembly and elsewhere, and – as a result  – the almost complete absence of effective action.

Secretary-General Kofi Annan laid down the challenge a heartfelt plea in his 2000 Millennium Report to the General Assembly: “If humanitarian intervention is indeed an unacceptable assault on sovereignty, how should we respond to a Rwanda, to a Srebrenica – to gross and systematic violations of human rights that offend every precept of our common humanity?”

It was to answer this challenge that the Canadian government established the International Commission on Intervention and State Sovereignty (ICISS), and it was in the report of that commission, published in 2001, that the responsibility to protect (or “R2P” as it is widely now abbreviated) was conceived. Our primary task, as we saw it, was to come up with something which built bridges, rather than burned them, between North-perceptions and South-perceptions; which made clear that there were other response options apart from “sending in the Marines” or “doing nothing”, and that forcible military intervention was not the only game in town; and which, above all, was capable of generating a reflex international response that mass atrocity crimes were not nobody’s business, but everybody’s. As subsequently refined, and endorsed unanimously by more than 150 heads of state and government sitting as the UN General Assembly at the 2005 World Summit, the new doctrine had three key dimensions:

• its language, which in moving from “the right to intervene” to “the responsibility to protect” re-characterized the issue in a much less inherently aggressive way, as not being about the “right” of states to throw their weight around militarily, but rather the “responsibility” of all states to act to protect their own and other peoples from mass atrocity crimes, and with the emphasis not on “intervention” of the strong but “protection” of the weak;

• its spreading of that responsibility: every state had the responsibility to protect its own people; other states had a responsibility to assist them to do so; and – if a state was manifestly failing, as a result of either incapacity or ill-will, to protect its own people – the wider international community then had a responsibility to act more decisively; and 

• its broadening the range of appropriate responses. Whereas ‘humanitarian intervention’ focused one-dimensionally on military reaction, R2P involves multiple elements across the response continuum: preventive action, both long and short term; reaction when prevention fails; and post-crisis rebuilding aimed again at prevention, this time of recurrence of the harm in question. The ‘reaction’ element, moreover, was itself a nuanced continuum, beginning with persuasion, moving from there to non-military forms of coercion of varying degrees of intensity (like sanctions, or threat of international criminal prosecution), and only as an absolute last resort contemplating coercive military force.

The period from 2005 to 2011 saw the gradual growth to the maturity of the new norm.  There was a lot of academic and intergovernmental debate which helped to clarify its precise scope and limits; rearguard political resistance to it, by a handful of states who hated the 2005 consensus into which they felt they had been dragooned, fell right away (as evidenced by successive annual UN General Assembly debates from 2009 onwards); new institutional mechanisms and processes to facilitate its application gradually evolved. Although it was not always invoked when it should have been (most obviously in the context of Sri Lanka’s endgame destruction of the Tamil Tigers in 2009), some clear examples of its misuse were widely derided (in particular Russian invocation of R2P to support its invasion of northern Georgia ‘to protect its passport holders’ in 2008).

And it was being seen as increasingly relevant in practice – most obviously and importantly in Kenya in early 2008, when a diplomatic mission led by Kofi Annan under the auspices of both the UN and African Union, and explicitly invoking R2P, successfully defused what was rapidly deteriorating into a Rwanda-scale catastrophe.

But throughout this whole period the international community tip-toed around the question we are focusing on today, viz. when did R2P make it right to fight, as distinct from engaging in just a variety of preventive strategies, and reactive strategies – diplomatic and otherwise – short of military coercion. It was not until six years after its embrace by the General Assembly that the new doctrine, or norm, was invoked by the Security Council itself and used to support coercive military force. When the Security Council did so in early 2011, in the almost simultaneous cases of Cote d’Ivoire and Libya, it seemed for a time that God was in His heaven and all was right with the world, because these looked like textbook examples of how R2P was supposed to work in practice, in the face of a rapidly unfolding mass atrocity situation.

The situation in Cote d’Ivoire was quickly resolved with the French-led international intervention that occurred, and has remained subsequently largely uncontroversial. And at the outset at least, in the case of Libya, things fell into place exactly as they were supposed to: Gaddafi’s initial violence against unarmed civilians met with a unanimous condemnatory and sanctions-imposing resolution from the Security Council, with that being followed three weeks later – when it seemed clear to everyone that new atrocities were imminent – by the authorisation of military measures “to protect civilians and civilian populated areas under threat of attack”.  Acting under this authorization, NATO-led forces took immediate action, and the feared massacres in Benghazi and elsewhere did not eventuate. If the Security Council had acted equally decisively and robustly in the 1990s, the 8,000 murdered in Srebrenica and 800,000 in Rwanda might still be alive today.

It was not long, however, before the apparent maturity of R2P turned into a mid-life crisis. The initially uncontroversial case of Libya within a few months became very controversial indeed, raising all the old familiar global-South concerns about Northern trigger-happiness and imperial overreach, and resulting in almost complete paralysis in the Security Council when it came to reacting to Syria, which from mid-2011 onwards rapidly became an even worse situation than Libya.

The controversy in Libya arose because the military intervention, led politically by the “P3” (US, UK and France) and militarily by NATO, came rapidly to be seen as knowing how to start a fight, but not how to stop it. The Western coalition came under fierce attack by the BRICS countries – Brazil, Russia, India, China and South Africa – for exceeding its narrow civilian protection mandate, and being content with nothing less than regime change, which was finally accomplished with the overthrow of Gaddafi in October 2011.

The complaints of the BRICS, all of whom were sitting on the Security Council at the relevant time – in an interesting foretaste of the kind of Security Council membership more representative of current world power balances that many of us have been arguing for – were not about the initial military response: destroying Libyan air force infrastructure, and air attacks on the ground forces advancing on Benghazi. Rather the concern was about what came after.  The interveners were seen as striking fleeing personnel that posed no immediate risk to civilians and locations that had no obvious military significance (like the compound in which Gaddafi relatives were killed); more generally, comprehensively supporting the rebel side in what rapidly became a civil war, ignoring the very explicit arms embargo in the process; and, above all, rejecting ceasefire offers from Gaddafi that may have been serious.

The P3 have not been without some answers to these charges. If civilians were to be protected house-to-house in areas like Tripoli under Gaddafi’s direct control, they say, that could only be by overturning his whole regime. If one side was taken in a civil war, it was because one-sided regime killing sometimes leads (as now in Syria) to civilians acquiring arms to fight back and recruiting army defectors.  Military operations cannot micromanaged with a ‘1,000 mile screwdriver’. And a more limited ‘monitor and swoop’ concept of operations would have led to longer and messier conflict, politically impossible to sustain in the US and Europe, and likely to have produced many more civilian casualties.

But while these arguments have force, the P3 resisted debate on them at any stage in the Security Council itself, and other Council members were never given sufficient information to enable them to be evaluated. Maybe the BRICS (and Russia in particular) are to be believed when they say that, had better process been followed, more common ground could have been achieved.  But they can be when they say they feel bruised by the P3’s dismissiveness during the Libyan campaign – and that those bruises will have to heal before any consensus can be expected on tough responses to such situations in the future.

The worst thing about the complete Security Council paralysis over Syria was that it was not just confined to inaction on a military response to the situation there. From mid-2011, all the way through until September 2013, when the use of chemical weapons – the most extreme atrocity crime of all – fundamentally changed the dynamics of the Syrian situation, the Security Council could agree on almost nothing at all: not only on the extreme step of military force (as to which, as we there have been many good reasons not to act) but even on lesser coercive measures like targeted sanctions, an arms embargo, or referral to the International Criminal Court. The attitude seems to have been “give the P3 nothing that they want, because if you give them anything they will take everything”.

The horrific use of chemical weapons in Ghouta, on the outskirts of Damascus, in August this year, in which as many as 1200 or more men, women and children were killed in a single attack, has now proved to be a game-changer so far as the Security Council’s response to Syria has been concerned, with Russia and others joining in the unanimous global condemnation, and the OPCW being mandated – with Syria not resisting – to destroy its chemical stockpile.  And this may prove to be the door-opener for a diplomatic solution to the whole Syrian conflict, which has so far proved as elusive as international consensus on any other course of action.

But what still remains lacking after these developments is any kind of obvious consensus in the Security Council on the core question as to when it is actually right to fight in these cases. Was President Obama’s threat to use military force in Syria what actually triggered the positive developments we have seen, or did they happen despite him?  Was that threat, and in particular that part of it which indicated the US would go it alone, without Security Council approval, if it had to, defensible in principle?

What the whole sequence of events since Libya has shown is the absolute necessity of going back to first principles when it comes to the use of force, particularly in response to mass atrocity crimes. I believe those first principles do offer us both a clear guide to action in individual cases, and a clear basis for answering all the questions I earlier raised. Although there is not yet any formal UN resolution spelling them out, there are a set of five criteria of legitimacy, or prudential – or if you like moral – criteria which have in fact been around since the ICISS Commission’s report, have been picked up in subsequent important reports including those of a High Level Panel and Kofi Annan himself in the run up to the 2005 World Summit, and are becoming increasingly part of the currency of international debate. These criteria, put simply, are:

• Seriousness of Threat: is the threatened  or occurring harm of such an alarming kind and magnitude as to at least prima facie justify the use of military force?

• Proper Purpose: is it clear that the primary purpose of the proposed military action is to halt or avert the threat in question, whatever other purposes or motives may be involved?

• Last Resort: has every non-military option for meeting the threat in question been explored, with reasonable grounds for believing lesser measures will not succeed?

• Proportional Means: is the scale, duration and intensity of the proposed military action the minimum necessary to meet the threat in question?

• Balance of Consequences: is there a reasonable chance of the military action being successful in meeting the threat in question, with the consequences of action not likely to be worse than the consequences of inaction?  Or, putting this even more briefly, will military intervention do more harm than good?

It will be obvious to many of you that these criteria largely replicate and reflect the whole tradition, and vast literature, of Christian ‘just war’ theory. But it’s important to appreciate that they are not in any way culture or religion specific, and there is nothing in them which is incompatible, and much which actually reflects, doctrines and traditions in other cultures and religions, not least Islam.

How, then, does attention to these criteria help us answer the various questions I posed at the outset?
Was it right in Libya for the NATO-led intervention to pursue Gaddafi all the way to the grave, or should they have stopped short of that? 

When the P3 and NATO opted for regime change, that raised serious questions about their commitment to both the Proper Purpose criterion (was the intent really just to stop the harm to civilians, or rather to remove a long-standing irritant to the region, or conceivably to get better hydrocarbon deals in the future?)  and the Proportionality test (was more force used than was necessary to halt the civilian damage). As I have already indicated, the Western powers did have some reasonable answers to these questions – I for one don't think the alleged oil motivation was in any way crucial, and there is an argument that the Gaddafi ceasefire overtures, which if accepted might have stopped the conflict much earlier, albeit at the price of keeping his regime in power to some extent, were never really serious.  But what is clear is that the West, once it had its mandate, did not treat these issues as ones it needed to seriously go on debating in the Security Council or anywhere else – and that to me was both an ethical and a political mistake.

If we should have intervened militarily in Rwanda in 1994, why not in Darfur ten years later?

A good case could have been mounted for military intervention in Darfur, at least in 2003-04, when the violence was overwhelmingly one-sided, on most of the five criteria. But there was a real stumbling block in the last criterion – the Balance of Consequences. A full scale conflict would have made it logistically impossible to maintain international humanitarian relief for the more than 2 million Darfuris displaced within the country: the additional suffering of those we would have been seeking to protect would have been immense. And  elsewhere in the country the very fragile North-South peace agreement, only just holding together after 20 years of terrible conflict, would have been a dead letter. So, as weak as it might seem in retrospect, international diplomatic pressure, including through initiating an International Criminal Court prosecution against President Bashir, was really the only game in town.

Why might it have been right to invade Iraq in 1991, but not in 2003?

In 1991 all the stars, not only moral but legal, were absolutely in alignment in favour of war: Iraq’s invasion of Kuwait was an unequivocal breach of the UN Charter and universally seen as such; and the military action that followed – though brutal so far as it went – was properly motivated and focused, necessary to achieve Iraq’s exit, proportional in its application (not least in stopping short of marching on to Baghdad once the rout from Kuwait was complete), and did not in itself do any more damage than it stopped.

All that was reversed in 2003. With the evidence for continuing WMD possession and support for terrorism always lamentably weak, the strongest case for action against Saddam Hussein was his appalling human rights record.  But while that would certainly have justified condemnation, isolation, sanctions and international criminal prosecution, at the time of the invasion it did not pass the threshold criterion of Seriousness of Harm, occurring or imminent. Saddam’s massacres of Iraq’s Kurds in the late 1980s or southern Shiites in the early 1990s would certainly have qualified then, but by the early 2000s Saddam’s behaviour was no more egregious than a score or more of other serial human rights violators around the world. It would be like invading Zimbabwe now for what Mugabe did in Matabeleland in 1988.

How could it be right to take military action in response to mass atrocity crimes in Sierra Leone or Cote d’Ivoire, knowing that no such action would ever be contemplated against Russia or China, however badly Moscow behaved in Chechnya or Beijing in Tibet or Xinjiang?

Again the key to this is appreciating the force of the Balance of Consequences criterion.  However terribly people might be suffering in some conceivable future in Xinjiang or Tibet, if military action were to be mounted against China on their behalf the war that would then break out – and let no-one be under any illusion that it would not be war in this event – would unquestionably result in casualties, and human immiseration, on a much greater scale than anything that could conceivably have been averted by such an intervention. And similarly with military action against any of the other major powers: it’s not double standards involved here, but a realistic calculation of the balance of harm. It is for this kind of reason, for example, that coercive military action against Indonesia in East Timor after the terrible violence erupted there in 1999 would have been absolutely unthinkable: it was only when Jakarta agreed, under huge international pressure, to allow in an external peacekeeping mission with a robust enforcement mandate that any such exercise was possible.

So finally – back to where we came in: Was it right or wrong for Barack Obama to threaten military strikes on Syria, as he did over chemical weapons?

Applying the first criterion here, Seriousness of Harm, it is hard for anyone to argue against the gravity of what happened in Ghouta, and – with the evidence as it now is, against the responsibility of the Assad regime.  But why should the death of hundreds, maybe well over a thousand, from CW be seen as a red line, when the deaths up until then of one hundred times that many by other means (including many civilians, and in many cases also involving war crimes or crimes against humanity) has not been? The short answer is that weapons of mass destruction are different, and justify the whole international community being as spooked as it has been by their appearance on the Syrian scene.

The first part of this argument is that the use of CW, like biological or nuclear weapons, is inherently indiscriminate, in that conventional weapons can at least notionally be targeted to avoid collateral civilian casualties in a way that is just about impossible for weapons-of-mass-destruction use, certainly in urban warfare as distinct from an isolated battlefield context. The second part of the argument is that the scale of potential tragedy, when these kinds of weapons start to be used, is breathtaking: if the Assad regime were to be emboldened by international inaction, the number of deaths in the future from CW could be expected to quickly make the present toll of 100,000 look modest.

As to the second criterion, that the Primary Purpose of any military action be civilian protection without any other agenda, Obama’s constant emphasis that any such action would be about stopping any repetition of this harm from a totally unconscionable weapon, without any suggestion that its real purpose would be regime change, was as strong an assurance as one could ask for in these kinds of circumstances. In the same vein, the recurring emphasis by Obama and Secretary of State Kerry, on any strike being as modest as it could be, while still strong enough to concentrate Assad’s mind, may have generated a little ridicule in the Western media but remained consistent with the principle of Proportionality.

As to the criterion of Last Resort, that no lesser measure than military action was available or likely to be effective in meeting the civilian protection objective, some might argue that the lie has been given to that by the success so far of diplomacy. But the real question is whether that diplomatic momentum would ever have started without the US threat being on the table.  I don't think there would have been any movement at all, and to that extent regard the Obama threat as wholly defensible.

The Balance of Consequences criterion, that any military response not put those meant to be protected in even greater peril, was the toughest of all for Obama to satisfy. Concerns on this front—that any major intervention would simply further inflame the war, causing even greater overall suffering—until now have been a key reason for the lack of wide international support for any action like no fly zones, or buffer zones or humanitarian corridors, or open-ended arming of an increasingly problematic opposition. Certainly any proposed action in response to the CW attacks would have needed to be very precisely calibrated, with a full understanding of, and determination to minimise, its likely wider impact; not an impossible task, but a very difficult one.

So applying all these criteria, my view is that Obama’s threat was a necessary and defensible circuit breaker, and that it will remain defensible if he is forced to carry it out in the event that there is an egregious Syrian default, and no consensus in the Security Council on how to react.  I say that even though threatening or using coercive military force without Security Council approval, in a case like this where self-defence could not be claimed, would be in clear breach of international law.

So we come finally to probably the hardest question of all to answer. How can it possibly ever be right to fight when to do so would breach the UN Charter? Even when all the prudential or moral criteria seem to be satisfied, and all that is standing in the way of legality is a Russian or other major power being exercised on the flimsiest of grounds or no grounds at all?  Doesn't a rule-based international order that most of us crave, and that a middle power like Australia should crave, make it impossible to live with a breach of the most basic rules of all?

The heroic efforts by UK (and some US) government lawyers to argue that customary international law allows action outside the Charter – in the case of exceptional measures taken to alleviate overwhelming humanitarian catastrophe—are quite unpersuasive. There may be some logic in the proposition that the very nature of customary international law, dependent as it is on accepted custom and practice, means that in a sense you do have to break it to make it. But what happened in Kosovo in 1999, when a “coalition of the willing” did take military action against Serbia’s Milosevic in defiance of a threatened Russian veto in the Security Council, and were more applauded than criticised internationally for doing so, is manifestly insufficient precedent to claim that any new law has been made.

 What the Kosovo precedent does do is suggest a credible answer as to how a military strike against Syria could possibly still be justified in the court of global opinion, if not of law, should an actual or threatened Russian veto mean the absence of Security Council legal authority, provided the kind of criteria of legitimacy I have been describing  are again seen to be broadly satisfied.  The most credible way of overcoming the lack of formal legal authority is to offer the equivalent of a domestic court plea in mitigation: “We may have breached the letter of the law, but don’t challenge its applicability and won’t make a habit of it—it’s just that in the very particular circumstances of this case there was an overwhelming moral imperative to act as we did, and any censure should reflect that.” Much better, in trying to rebuild longer-term consensus in these hard cases, to put the argument in such popularly understandable terms, placing particular emphasis here on the horrifying, morally game-changing use of CW. To invent a legal justification when there isn’t one, as the UK in particular tried to do in Iraq in 2003 and has tried to do now in Syria, is to put at risk the credibility of the whole humanitarian enterprise aimed at civilian protection.

These are complex issues, and we are some distance away from re-creating on the Security Council the kind of consensus that was so productive in heading off catastrophe in early 2011.  But the debate has started up again in earnest, not least around proposals from Brazil in recent times – which I’ve just spent the last two day debating with Chinese colleagues in Beijing – that formal attention be paid to the key criteria of legitimacy (in particular Last Resort, Proportionality and Balance of Consequences) in any future debate in the Security Council on whether a mandate for coercive military action should be granted, and that the operational implementation of any such mandate be subject to some kind of continuing review process by the Council to ensure that the maximum possible consensus is maintained through the lifetime of these missions.

I hope very much that Australia, which has been prominent in its support for, and advocacy of, the Responsibility to Protect principle since the beginning will make the most of its remaining year on the Security Council to take this debate forward in a constructive way.

Judging when it is right, and not right, to fight is just about the hardest call that anyone in high public office is ever called upon to make, and our leaders need all the help they can get in getting these calls right. But the analytical and institutional tools are all now there for them.

I believe that there are grounds for optimism both that the core R2P norm is here to stay, and that – when it comes to the most extreme end of the response spectrum – we are not forever condemned to repeat the mistakes of the past:  going to war when we should not be, and not going to war – to protect our fellow human beings from catastrophe – when we should be. Previous political generations, including my own, haven’t much to be proud of in defending our common humanity in these situations. I hope that the next generation will learn from our mistakes and get it right once and for all.